Real estate and real estate development are always hot topics in New York, never more so that after a real estate developer won the presidency.  Politics notwithstanding, indemnification in real estate development is always pertinent, and in  Board of Mgrs. of the Norfolk Atrium Condominium v 115 Norfolk Realty LLC 2017 NY Slip Op 30348(U) February 23, 2017 Supreme Court, New York County Docket Number: 652529/16,  Judge Barry Ostrager does a great job of explaining the rules.

“As indicated earlier, one remaining issue is the request by G+P, Betro, and V & P to dismiss the indemnification claims asserted against them by the third-party plaintiffs. G+P and V & P also seek to dismiss Betro’s indemnification cross-claims against them. The principle of common law indemnification permits a vicariously liable party to shift all liability to the party whose negligence actually caused the loss. See, 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80 (1st Dep’t 1999). However, “[s]ince the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine.” SSDW Co. v Fefdman-Misthopoulos Assoc., 151 AD2d 293, 296 (1st Dep’t 1989). Thus, to be entitled to indemnification, the party seeking indemnity “must have delegated exclusive responsibility for the duties giving rise to the loss to the party from whom indemnification is sought … ” 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80 (1st Dep’t 1999) (citations omitted). The moving third-party defendants argue that they may not be held vicariously liable for the alleged wrongs by the Sponsor, and that the Sponsor did not delegate exclusive responsibility to them for the duties that give rise tc:> the claims asserted by the plaintiff Board. Rather, it is alleged that the Sponsor itself participated, at least to some degree, in the alleged wrongdoing. The Sponsor argues in opposition. that the Board is, in fact, seeking to hold the Sponsor vicariously liable for the negligence of the architects and contractors and that the Sponsor itself committed no wrong as it did not perform the work at issue. While the evidence may ultimately prove otherwise, the pleadings contain sufficient allegations to withstand the motions to dismiss and allow discovery to proceed. The pleadings do allege, for example, that the Sponsor delegated to the third-party defendants the duty to properly perform the design and construction work at issue and that none of the damages are attributable to any fault, want of care or negligence by the Sponsor. The Court thus declines to dismiss the Sponsor’s indemnification claims based largely on the standard governing pre-answer motions to dismiss pursuant to CPLR §3211 (a)(7) for failure to state a cause of action, where the Court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference,. and determine only whether facts as alleged fit within any cognizable legal theory …. ” Leon v Martinez, 84 NY2d 83, 87-88 (citations omitted). And while indemnification would not lie for certain claims by plaintiff against the Sponsor, such as fraudulent misrepresentation and inducement, no need exists to
parse the claims at this time. Based on the same analysis, the Court declines to dismiss
Betro’s cross-claims at this time as the precise role played by Betro with respect to the
other third-party defendants and the degree of shared responsibility, if any, particularly
with respect to G+P, is in dispute. ”